A
government plan to allow millions of Americans to block telemarketing
calls to their homes was stalled yesterday by a federal judge who said
Federal Trade Commission overstepped its authority to create a national
do-not-call list.

The decision by U.S. District Judge Lee R.West in Oklahoma City threw
a large question mark over the federal government's plan that was to go
into effect next week.

....The ruling, handed down late Monday, caught government officials
by surprise and today FTC officials and key congressmen were scrambling
to try to make sure the list goes into effect as planned next Wednesday.

I am now ready to become a Republican. Unless this Lee R. West guy is a Republican, of course, in which case I will register myself a second time as a Democrat.

Okay, so someone please tell me if I'm wrong about this. According to what I read, the judge's opinion goes like this:

The FTC was granted the ability to fund the creation, distribution,
and regulation of a federal do-not-call list. But because the
legislation did not explicitly create the Do-not-call list itself, the FTC has no regulatory ability to create it itself; Congress must explicitly create it.

Is that the way it goes? If so, wow, this is, like, the biggest technicality ever.

Since I'm busy posting at the TOP of the comments sections today, I
should probably add to this one, too. Even if someone beats me because I
tend to write too much.

I'm in direct mail. Fundraising for nonprofit (liberal)
organizations, but it's the same business. I've done commercial stuff,
too, and I have enormous respect for many of the direct mail writers and
consultants I've known over the years. (And heaps of contempt for quite
a few as well).

I can't tell you how many of us, in this profession, are mad as
hornets at "our" trade group, the Direct Marketing Association. This
lawsuit stinks, and their support of the telemarketeers stinks too.
Problem is that they define "direct marketing" as broadly as possible:
direct mail, "advertorials" in magazines and newspapers, sales pitches
on TV ... and, of course, telemarketing.

The damned telemarketers seem to have an incredible grip on the DMA.
They pushed this lawsuit, of course, and they tend to really get their
way in the organization. Nevermind that, to most of us, they're "johnny
come latelies" to the field. Nevermind that most of us, like most
people, HATE telemarketing calls. Nevermind that most of us cheerfully
avoid that end of the business altogether.

I always carefully make the distinction between cold prospect
telemarketing (where they call you to pitch something, and you've never
heard of them before in your life), and calls firms make to established
customers (usually made with some kind of advance "permission"). The
latter, most people will agree, isn't quite so bad. The former is
infuriating to ... well, at least 51 million of us.

Let us all hope this dimwitted court decision is overturned quickly. I
know all of the DMA's legal theories about it. They're b.s. This is NOT
a free speech issue. It is a question about whether or not strangers
have a right to intrude in your home, using equipment you paid for on
lines you pay for, in order to steal your time. Period.

Some folks hate direct mail, too, but -- usually -- far less
strenuously. Direct mail is something you can toss unread, if you want,
or at least read at your leisure. Most of the printed elements can be
recycled without problem. And, most direct mail firms would genuinely
PREFER not to mail to you if you really aren't interested; telemarkets
say the same thing, but I can assure you that is NOT what they believe.

They believe that calling lots of numbers and getting a crack at
people with their pitch is the ONLY important thing. They are mostly
concerned about telemarketing lists being accurate (that is, to live
phones answered by the people listed to them), rather than whether or
not they have a "history" of being telemarketing-responsive.
(Responsiveness is important, too, but one of the things about
telemarketing is the secretiveness of it. No one actually sells lists of
indisputably-responsive consumers, not in the telemarketing world).

West was appointed a district judge by Henry Bellmon, who was
Oklahoma's first Republican governor. He was later appointed to the
Civil Aeronautics Board by Richard Nixon, then appointed to the U.S.
District court by Jimmy Carter. So I wouldn't jump to any conclusions
about his affiliation, nor do I think it's all that relevant.

Looking at the judgement and the discussions, there's good and bad news.

The bad: The judge really had no choice. Congress passed a law saying
the FCC could define rules on running a Do-Not-Call list, and could run
such a list. However, while the FCC did make the rules, they passed the
actual running of the list to the FTC. The DMA sued that the FTC had no
legal authority from Congress to run such a list -- and there's plenty
of precedent saying that only Congress could have made such a transfer,
and they didn't. Therefore, the FTC list is illegal.

The good: There's nothing in this ruling that outlaws a national
Do-Not-Call list. There's two obvious fixes -- either the FCC takes the
list back from the FTC, and runs it, or Congress explicitly allows the
transfer to the FTC by legislation.

Marsman:
If your corner of the Direct Marketing universe is unhappy with the DMA,
why not quit and form your own trade association, responsive to your
priorities? At a minimum, I would think the threat of losing whatever
share of the membership revenues you guys represent might make DMA sit
up and take notice of your concerns.

I don't know about you folks, but volunteering information to be put on a list that promises something is pretty pie in the sky.

Now, there's a list of real people, 42-million strong, and the data base must be worth millions.

Isn't it better just to hang up? Or to shut the ringer down? In a
world where you can have more than one phone, why is your ACCURATE phone
number on your checks? You control what gets printed.

In this home I shifted my 'main' number to my modem long ago. So, I
give out this wonderful phone number that rings and rings 'somewhere'
but not here. Not in my ears.

And, I also can hang up the phone. Who says I have to answer by name? I'm in the classroom? You're taking attendence?

That a judge would do this is NO surprise.

That we let rulings come down the pike without having the judges
provide urine for drug testing, now that's a surprise! These athletes
should prove they're qualified and not just dazed when they go for the
gold of a headline.

Flory:If [you're]... unhappy with the DMA, why not quit and form your own trade association, responsive to your priorities?
Probably for much the same reason that hunters don't quit the NRA, even
if they dislike cop-killer ammunition and unregulated handguns. Like
Marsman, they regard the organization as "theirs" and the people who are
driving the agenda as "johnny-come-latelies". For another thing, they
find membership in a large and powerful organization more useful than
membership in a small and powerless one.

It's an admin law thing. The statute empowers regulations to be made
by the executive by the statute is a bit vague as to who gets to create
the list - it could be either the FCC or the FTC. If it was in fact
the FCC then the FTC would be acting ultra vires, as the term goes.

I think this decision is prudent. If he'd let it go, the DMA would
have tried to circumvent the law and get any attempt at fines judicially
reviewed on the ultra vires grounds. Which means more time, more court
wrangling, possible injunctions over the list etc..

"Marsman:
If your corner of the Direct Marketing universe is unhappy with the DMA,
why not quit and form your own trade association, responsive to your
priorities? At a minimum, I would think the threat of losing whatever
share of the membership revenues you guys represent might make DMA sit
up and take notice of your concerns."

Good idea ... except I'm just a little ol' freelance writer these days,
and am NOT a member of the DMA. The groups I used to be associated with,
some of them, were members. Whether they are any longer I do not know,
but I do know from the trade magazines that there are quite a few
members very unhappy about the organization's tendency to carry water
for the telemarketing end.

Oh, and some former members HAVE split off ... or at least formed
their own little "specialized" organizations. Fundraisers, for example,
are often in smaller, separate trade groups.

But it's a big, big industry out there, and MOST of those in it
aren't about to walk away from their main trade organization. DMA
doesn't exactly ignore the needs of any segment, insofar as I know, so
even if folks gripe about it favoring telemarketers, that doesn't mean
they're unhappy with everything it does. (Also, I tend to think a lot of
folks gripe about the telemarketing more because they think that
segment of the industry reflects badly on us all, rather than any actual
distaste for telemarketing per se. Just my hunch).

Finally, you'll notice that I never suggested that most of the
industry -- even those in it who dislike telemarketing -- are in any
particular respect liberal. Hell, is ANY industry in this country in any
particular respect liberal? Plenty of those who dislike telemarketing
dislike all forms of guv'ment regulations even more. Alas!

Hey guys, don't harass the judge at his telephone. It's not nice and
it's not fair. He's doing his job and (at least from the press
reports) there's a legal basis for his decision. This agency stuff is
really technical (it's one area where the law is almost all
technicality), but that may not be so bad in some ways. I mean,
Congress should be in charge and agencies should be able to do only what
Congress authorizes them to. Otherwise, their constitutionality and
democratic underpinnings would really be suspect. The judge may be
wrong, or he may be right. If he's wrong, there's an appeal. If he's
right, 50 million votes say Congress will fix the situation.

Posting the idiot judge's phone numbers is wrong WRONG WRONG!.
Not all of the wackos are right-wingers. Would your conscience be able
to handle some lefty Eric Rudolph or Paul Hill taking self-authorized
action?

Expose his actions, his affiliations, sure. But the moron is still a
human being and as such is still entitled to a certain amount of
privacy.

We get enough bad behavior from the Rethugs, so let's not join their crew by acting like them.

From my reading this appears to have been a pretty unexceptional
legal ruling. Like most "first impression" cases, good arguments can be
made either way. This means the judge was just doing his job. People
are attacking him without stopping to think that this is a technical
problem that can be fixed pretty easily: if Congress thinks a "no call"
list is a good idea it can say the FTC can run one, or it can direct the
FCC to run it. Nothing in the decision says there can't be a "do not
call" list, only that it wasn't set up the right way. People should
calm down.

I agree with David, everyone should take a chill pill. He's only
pointing out an inconsistancy that the house will fix by eod
today(9.25). Why is no one busting the telemarketing industry for
fighting this while expressing "deep concern" for the millions who have
already signed up? Deep concern is great but they still don't want to
do anything proactive! They could adopt the list willingly, but they'd
rather try to kill it wholesale while stating that their hands are clean
of blood, Nice try.